New medical marijuana regime another step in a convoluted dance

A new regulatory regime for medical marijuana, the Access to Cannabis for Medical Purposes Regulations (ACMPR), came into force Aug. 24 and will improve access and affordability to the drug for those who need it, says Toronto criminal lawyer Aaron Harnett.

“The crazy two-step between the courts and the federal government continues, and as a result there is now an improved range of products that can be sold to medical users, such as cannabis oil — which can be used both topically and orally — and the restoration of the right of the patient to grow medical marijuana,” he tells AdvocateDaily.com.

“These new regulations are the minimum response required to keep the marijuana prohibition from going up in smoke.”

Harnett explains the new regulations follow a decision, Allard v. Canada, 2016 FC 236 (CanLII), in February in which the Federal Court found the Marihuana For Medical Purposes Regulations (MMPR) unconstitutional because they didn’t provide Canadians with reasonable access to the drug for medical purposes. The decision gave the federal government six months — until Aug. 24 — to develop a new regulatory regime for medical marijuana.

The new regulations save the entire medical marijuana regime from continuing to be unconstitutional, Harnett says.

“The new regime continues to make room for both the existing licensed producers of medical-grade marijuana and the individual who wants to grow it for themselves — the federal government had to solve a complicated problem in a very short period of time,” he says.

“One, the government had to bring in regulations that would allow patients to access pot, in both dried and home-grown form. Two, the government had to allow medical access to co-exist with criminal prohibition. Three, it had to continue to honour its commitment to the licensed producers, who took the huge financial risks to take over growing pot for the medical market. Four, it has to create this regime knowing that in the matter of eight to 10 months there will be a brand new legal structure regulating the possession and distribution of recreational marijuana for all Canadians.”

The new regulations provide individuals who need cannabis for medical purposes with three options to access medical marijuana: through commercial licensed producers, by producing it themselves (personal production), or by designating someone to produce it for them (designated production.)

The regime substantively incorporates the regulatory framework established under the MMPR for commercial-licensed producers and the one established under the former Marihuana Medical Access Regulations (MMAR) for personal production and designated production.

While the former MMPR and MMAR restricted access to dried marijuana, the ACMPR also allows for the production and possession of cannabis in forms other than dried.

Harnett explains that under the new regime a person with a prescription for one gram of medical marijuana per day — a relatively common dosage — would be permitted to grow five indoor plants or two outdoor plants at any given time.

“And if their crop fails, they can buy it from one of the government’s licensed producers,” he says.

Harnett says it appears that under the new regime, licensed producers that have invested heavily in their business now have the ability to sell cannabis oil, which previously wasn't permitted.

“The government has also allowed these producers access to foreign markets by importing or exporting marijuana product, which is a substantial change,” he says.

Rick Vrecic, owner of True Compassion Toronto, a not-for-profit compassion club to help those with chronic pain or disability gain access to medical cannabis products, says the new regulations do not provide clarity for dispensaries and continue to leave questions about what happens next year when marijuana is expected to be legalized.

"There's a great deal of certainty remaining," he says. "The dispensaries feel targeted (by law enforcement) but we still do what we do for our members. Every one of us here needs these products for our medicine."

Vrecic hopes Canada adopts a similar marijuana legalization model as that already present in Colorado.

While Harnett says the new regulations provide users with improved access to medical marijuana, he too believes it is a “wasteful use of government resources” to create a regime that is expected to only be in existence for the next few months before marijuana is de-criminalized.

“When that happens, we can see the regime rewritten yet again,” he says. “But I guess the government didn’t want to be forced into legalizing pot by not having these regulations in place. These are the kinds of convoluted dances that governments must do to keep pot criminalized."